Points without explanation are not enough: the Council of State suspends the award of the water analyses to Laboratorium Ecca
The Provincial Institute of Hygiene sought the suspension under extreme urgency of the decision by which the Flemish Region awarded the water analyses for the Antwerp, Limburg and Flemish-Brabant lots to Laboratorium Ecca, and the Council of State found that the award decision — which for the qualitative criteria rested solely on point tables, without explaining why Ecca scored better — was inadequately motivated, and ordered the suspension.
What happened?
The Environmental Inspectorate of the Flemish Region’s Department of Environment, Nature and Energy launched, by open call for tenders, a public services contract for the measurement, sampling and analysis of waste water, cooling water and surface water (specifications LNE/MI/2013/WATER, published on 28 August 2013 and in the Official Journal of the EU on 30 August 2013). The contract was divided into five lots (Antwerp, Limburg, East Flanders, Flemish Brabant and West Flanders). The first award criterion, ‘quality of the technical performance’ (maximum 60 points), was assessed with the scientific and technical support of VITO. By decision of the Flemish Government of 18 March 2014, lots 1, 2 and 4 were awarded to Laboratorium Ecca. The PIH, an unsuccessful bidder, sought the suspension under extreme urgency of that award for lots 1 (Antwerp), 2 (Limburg) and 4 (Flemish Brabant), arguing that the decision infringed articles 4 and 5, 9° of the Law of 17 June 2013: the award report showed a numerical outcome but no substantive reason why its bid was rated inferior for the sub-criteria ‘lab fit-out’ and ‘data transfers’. The scores spoke for themselves: for the sub-criterion ‘organisation of sample collection, analysis times and type of reporting’, Ecca scored 10 out of 10 each time and the PIH 1.875; for the ‘quality of the procedures for sampling and storage’, Ecca scored 16.67 and the PIH 10. Moreover, the four VITO reviewers applied an all-or-nothing method, awarding the maximum to the best-rated bid and zero to the second. The Council held that mere point allocation in a call for tenders is not adequate motivation, especially for qualitative criteria: the points must rest on reasons visible as a descriptive evaluation, usually in words. The PIH could not deduce from the tables why its laboratory fit-out, data transfers or analysis times were rated lower than Ecca’s, all the more so because the all-or-nothing method also prevented it from gauging the intrinsic value of the bids; the additional explanation of 27 March 2014 brought no clarity on the decisive sub-criterion either. The characteristics and relative advantages of the chosen bid were thus not explained, which amounted to an infringement of articles 4 and 5, 9°. The plea was serious. The Council admitted Ecca’s intervention and ordered the suspension under extreme urgency of the award of lots 1, 2 and 4 to Ecca; the costs and procedural indemnities between applicant and defendant were held in reserve, and Ecca bore the 150-euro intervention fee.
Why does this matter?
This judgment sets the bar for motivating qualitative award criteria. Figures are not enough: article 5, 9° of the Law of 17 June 2013 obliges the authority to set out the characteristics and relative advantages of the chosen bid, so that an unsuccessful bidder can understand why its offer was rated lower and judge whether a challenge is worthwhile. A point table alone — especially one produced by an all-or-nothing method, in which the winner gets the maximum and the runner-up zero — does not allow this: it hides the intrinsic appreciation and makes review impossible. The message reaches beyond this contract: the more technical and qualitative the assessment (here with external VITO expertise), the more important it is that the authority makes the reasons behind the score visible in words. For bidders, this means a weak score that is not explained can constitute a serious plea — and, under extreme urgency, even the suspension of the award. The judgment also mirrors a related case of the same day (no. 227,233): where the motivation there sufficed and the action was rejected, here it fails for want of descriptive reasons.
The lesson
If you are the contracting authority, never motivate qualitative award criteria with figures alone. Make visible, in words, why a bid receives a given score and, above all, what the concrete characteristics and relative advantages of the chosen bid are compared with those of the unsuccessful bidders. Be especially careful with an all-or-nothing method (maximum for the best, zero for the second): it conceals the intrinsic appreciation and is hard to justify. If you are a bidder and receive a weak score on qualitative criteria without explanation, request the motivation and check whether the characteristics and relative advantages of the winner were explained; if not, that may constitute a serious plea which — given sufficient urgency — can even justify suspending the award. Do not wait passively: a timely action under extreme urgency can stop performance before the contract becomes definitive.
Ask yourself
Does your award decision contain, for the qualitative criteria, more than figures — namely a descriptive explanation of why a bid receives that score? Have you concretely set out the characteristics and relative advantages of the chosen bid against the unsuccessful bids? Are you using an all-or-nothing method, and if so, can you justify why the runner-up deserves zero points? And as an unsuccessful bidder: have you checked whether you can deduce from the award report why your bid was rated lower, and if not, are you considering a timely action under extreme urgency?
About this database
The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →